09/11/97 PEOPLE STATE ILLINOIS v. MARK BURNIDGE

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,v.MARK BURNIDGE, APPELLANT.

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. John R. Goshgarian, Judge, presiding.

As Corrected September 18, 1997.

The Honorable Justice Miller delivered the opinion of the court. Chief Justice Freeman, specially concurring. Justice Bilandic joins in this special concurrence.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

After a jury trial in the circuit court of Lake County, the defendant, Mark Burnidge, was convicted of two counts of aggravated criminal sexual abuse. The trial judge sentenced the defendant to 36 months' probation, together with a nine-month term of periodic imprisonment. The judge also ordered the defendant to pay a total of $1,500 in restitution and fines. The appellate court affirmed the defendant's convictions and sentence. 279 Ill. App. 3d 127, 664 N.E.2d 656, 216 Ill. Dec. 19. We allowed the defendant's petition for leave to appeal (155 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

Only a brief recitation of the evidence in this case is necessary here. At trial, R.R., who was 15 years old at the time of the offenses, testified that she and a friend, J.P., arrived at St. Matthew's Lutheran Church, located in Lake Zurich, around 7:30 p.m. on April 16, 1994. They were attending a youth function at the church that night, and they came early to prepare for the event. The defendant, who was then 23 years old, and who served as a counselor to the youth group, was already present when the two girls arrived. According to the complaining witness, after she and the defendant had set up a table in the lobby of the building and were returning to the classroom area, she and the defendant stopped in the gymnasium, where the defendant led her to the stage. There, the defendant kissed her and reached under her shirt and bra and touched her breasts. The defendant also placed R.R.'s hand on the front of his pants. R.R. told the defendant to stop, and he complied.

R.R. testified further that, about 5 or 10 minutes after the incident in the gymnasium, while she and the defendant were in the basement of the building looking for a video cassette recorder, the defendant again kissed her on the mouth, reached under her clothing and touched her breasts, and placed her hand on the front of his pants. R.R. asked the defendant to stop; he did initially but resumed a few moments later. R.R. then told the defendant that they had to go, and they left the basement. R.R. rejoined J.P. upstairs and asked her friend to accompany her to the restroom. There, R.R. straightened her bra, which the defendant had unfastened, and told J.P. what had happened. Later that evening, R.R. reported the incidents to Rev. Carlton Payne, the assistant pastor of the church. R.R. testified that, at a subsequent meeting attended by her, her parents, Rev. Payne, and the defendant, the defendant apologized for what he had done. R.R. denied putting her arm around the defendant or resting her head on his shoulder, as the defendant, in his own testimony at trial, said she had done.

Over a defense objection, R.R. also described a similar incident that occurred in August 1993. On that occasion, R.R. had gone to the church to help her mother do some cleaning. The defendant was there, and he invited R.R. to play basketball with him in the gym. After playing a while, the defendant led R.R. to the stage, where he kissed her and placed his hands under her clothing and felt her breasts. R.R. reported this incident to Rev. Payne about a week later but did not tell anyone else about it at the time. After the incidents in April 1994, however, R.R. informed her parents about the earlier occurrence.

J.P. provided testimony corroborating R.R.'s account of their preparations for the church event that night. According to J.P., after R.R. and the defendant had returned from a search for the video cassette recorder, R.R. suggested that the two girls go to the restroom. There, R.R. straightened her bra and tucked in her shirt. R.R. seemed nervous and began to cry. R.R. then told J.P. that the defendant had kissed her and "tried to go up her shirt."

The defendant also testified at trial, admitting to one instance of physical contact with R.R. The defendant said that he, R.R., and J.P. first set up a table in the lobby of the building. Afterwards, they were searching for a video cassette recorder, and at one point the defendant told the two girls that he would look downstairs for it. The defendant testified that as he was going to the lower level of the building, R.R. appeared behind him and said that she, too, was going to look for the video recorder. According to the defendant, as they were walking together down a hallway in the basement, R.R. put her arm around the defendant's waist and rested her head on his shoulder. The defendant testified that, when they reached the end of the hallway, he kissed R.R. and placed his hand on her breasts, over her clothing. The defendant stated that the incident lasted about 10 seconds, and he explained that he stopped what he was doing because it was not proper. According to the defendant, neither he nor R.R. said anything during this time. The defendant denied having any other physical contact with R.R. on April 16, 1994, and he also denied the August 1993 incident described by her.

At the defendant's request, the trial judge instructed the jury on battery as an included offense of the two charges of aggravated criminal sexual abuse. The jury found the defendant guilty of both counts of aggravated criminal sexual abuse, as well as of battery. The trial judge later vacated the battery conviction because it was included in the principal charges. On the two counts of aggravated criminal sexual abuse, the trial judge sentenced the defendant to 36 months' probation, with a nine-month term of periodic imprisonment, and ordered the defendant to pay a total of $1,500 in fines and in restitution; the restitutionary portion of the order provided reimbursement to the complainant and her family for counseling costs.

The appellate court affirmed the defendant's convictions and sentence. 279 Ill. App. 3d 127. The court rejected, among other contentions, the defendant's "novel argument" that the entire prosecution should have been dismissed because the State's evidence was tainted by a clergyman's improper disclosure of confidential information received from the defendant. 279 Ill. App. 3d at 132. We allowed the defendant's petition for leave to appeal. 155 Ill. 2d R. 315(a).

The only question raised on appeal by the defendant concerns the trial judge's refusal to dismiss the present case because, in the defendant's view, it was tainted by a clergyman's improper disclosure of conversations between the clergyman and the defendant. This issue was raised prior to trial, when the defendant asked the trial judge to suppress all evidence derived from conversations between the defendant and Rev. John Golisch, and reported by Rev. Golisch to the Department of Children and Family Services (DCFS). Rev. Golisch was a pastor at another Lutheran church and a psychologist, and Rev. Payne had referred the defendant to him for counseling. After speaking with the defendant, Rev. Golisch was not sure whether he was required to file a report with DCFS pursuant to section 4 of the Abused and Neglected Child Reporting Act (325 ILCS 5/4 (West 1994)). Rev. Golisch explained at the pretrial hearing that he called DCFS for advice and was told that as a clergyman he was not required to submit a report but that as a psychologist he was. The statute requires psychologists, but not members of the clergy, to report instances of abuse. Rev. Golisch subsequently submitted to DCFS a report that identified R.R. as a victim of abuse but did not name the offender. Also at the pretrial hearing, the parties stipulated that DCFS relayed Rev. Golisch's report to the Lake County sheriff's office, and that the sheriff's office then brought the matter to the State's Attorney's attention.

The trial judge agreed with the defendant that Rev. Golisch could not be compelled to testify to his conversations with the defendant and that Rev. Golisch's report could not be introduced into evidence. The trial judge refused the defendant's request, however, that he suppress all the other evidence obtained in the wake of the report. Separately, the trial judge determined that conversations between the defendant and Rev. Payne and Deacon Todd Martin were also protected by the clergymen ...

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